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David J. Tayoun v. Timothy Mooney

October 26, 2012

DAVID J. TAYOUN, PLAINTIFF-APPELLANT,
v.
TIMOTHY MOONEY, JOHN MOONEY, DOMINIC CAPELLA, ROBERT LEVY A/K/A BOB LEVY, KIMBERLY BALDWIN, ESQ., KAREN UPSHAW, ANTHONY COX, TIMOTHY MANCUSO, WILLIAM MARSH, DENNIS MASON, JOYCE MOLLINEAUX, EUGENE ROBINSON, JOHN SCHULTZ, GEORGE TIBBIT AND G. BRUCE WARD, DEFENDANTS, AND CITY OF ATLANTIC CITY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1897-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Yannotti, Espinosa and Kennedy.

Plaintiff David Tayoun appeals from the Law Division's order granting summary judgment to defendant, City of Atlantic City (the City), dismissing plaintiff's complaint alleging violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (CEPA), and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (the CRA). We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.

I.

The motion record revealed that in January 2006 plaintiff was appointed by the City's newly elected Mayor, Robert Levy, as Director of the City's Neighborhood Services Department (NSD). The NSD oversees the "regulatory functions of the City," according to plaintiff, and comprises the Division of Code Enforcement, the Mercantile Division, the Construction Division and Landlord/Tenant Affairs. The heads of each Division report to and are supervised by the NSD Director, who is responsible for the overall functioning of the department.

On March 13, 2006, plaintiff prepared a memorandum to the City's business administrator requesting the termination of a field inspector in the Code Enforcement Division, alleging that the inspector was incompetent and had been accused of soliciting bribes. Similarly, on March 23, 2006, plaintiff prepared memoranda to the business administrator recommending the termination of another field inspector for incompetence and unethical conduct, and the Division's chief inspector for "covering up" the alleged derelictions of those he supervised.

Domenic Cappella,*fn1 the City's business administrator, testified at his deposition that he received the memoranda and removed from duty the inspector accused of taking bribes, pending a police investigation, which later "failed to uncover any criminal activity" by the inspector. He added that the other two employees remained on the City payroll, but that they would have been removed had the allegations been "credible."

Plaintiff also told the business administrator that he had received complaints from staff that the head of the Mercantile Division was "drinking on the job" and that a clerk in that division was also "either drinking or actually intoxicated on the job." The head of the Mercantile Division was a City police sergeant who was related to the Chief of Police. Cappella recalled plaintiff telling him that he "ought to check" on the head of the Mercantile Division and that, in response, he "might have" asked the Chief of Police to follow up on the complaint. He added that plaintiff, as the "direct boss" of the Mercantile Division head, could have taken "direct action" against the individual by "sen[ding] him home" and notifying Cappella if the individual was found to be intoxicated on the job.

Plaintiff further stated that the head of the Mercantile Division was quoted in a newspaper article "as being aware of integrity issues" within the Division in connection with the licensing of taxicabs. Plaintiff claimed that taxicab licensees were "illegal[ly] subleasing" their licenses to more drivers than the City's ordinance would permit. While the actual requirements of the ordinance at that time remained disputed,*fn2 plaintiff in October 2006 ordered a Mercantile Division clerk to deny licenses to an taxicab owner who had more than two registered drivers. Plaintiff contends that he thereafter received a call from the Office of the City Solicitor rescinding plaintiff's order.

Plaintiff further alleged that he voiced objections about the conduct and work performance of other subordinates in the NSD, but that neither the business manager nor the Mayor disciplined, investigated or terminated those individuals.

Plaintiff claimed that on October 18, 2006, he was "wrongfully terminated" by a letter "hand delivered" to him by the Mayor. The letter stated: "Please be advised that you are hereby terminated effective Wednesday, October 18, 2006, close of business" and that "your service has been appreciated."

The mayor conceded at his deposition that he had not provided the municipal council with notice of his intention to terminate plaintiff and that he never gave plaintiff an opportunity to be heard on his termination. Plaintiff also did not request such a hearing.

On June 5, 2007, plaintiff filed a complaint against the City, members of the municipal council, the Mayor, the business administrator and various city employees. In his complaint, plaintiff alleged that he was discharged in retaliation for engaging "in protected conduct by objecting to unlawful activity" in violation of CEPA. In count two of his complaint, plaintiff alleged that his discharge violated N.J.S.A. 40:69A-43, which required the mayor to notify the council of his intent to discharge and give plaintiff "an opportunity to be heard."

Plaintiff alleged that the failure to comply with the statute violated plaintiff's rights under the CRA.

Following discovery, the City moved for summary judgment. The motion judge granted the motion and stated, in pertinent part:

[Plaintiff] objected to conduct of . . . 8 or 9 different people and all of those people were his subordinates. None of those people were at his level. None of those people were above him. They were all people who were responsible and answerable to him, people over whom he had direct supervisory responsibilities. His memo to the City Administrator . . . didn't take away his ability to exercise any independent actions of his own. He didn't begin a disciplinary process as to anybody. He didn't go to the Prosecutor's Office as to anybody. He - -he didn't file criminal charges against anybody, but he complains about all this illegal conduct of people that are answerable to him [by] . . . writ[ing] one memo to . . . the City Administrator saying, you know, I got some bad people working for me. I'm not - - I'm not sure that, you know, that's whistleblowing. In fact, I'm confident that the objections that he raised concerning his subordinates doesn't . . . satisfy whistleblowing.

The judge also dismissed plaintiff's claims under the CRA, explaining that because plaintiff was concededly an at-will employee, defendant's actions affected no "substantive due process rights" of the plaintiff.

Plaintiff thereafter moved for reconsideration and recusal of the motion judge. The latter motion was based on a claim that the motion judge demonstrated a bias against employment lawsuits against the City when, in a 2010 written opinion, he stated, "[i]n Atlantic City, employment lawsuits are the continuation of politics by other means" and characterized such suits ...


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